These online practice tests and all items contained herein are protected by federal copyright law. No part of this examination may be copied, reproduced or shared in any manner, in part or whole, by any means whatsoever, including memorization or electronic transmission.

While I realize there have been several attempts to broaden the coverage of copyright and extend its length towards the far end of perpetuity, I was unaware that federal copyright law now provides remedies for the creation of infringing memories.

This would be merely inane (but still noteworthy), if this stupidity began and ended with the NALA's stern warning. But a search for that wording finds examples elsewhere.

These sample tests and all items contained herein are protected by federal copyright law. No part of these tests may be copied, reproduced, or shared in any manner, in part or in whole, by any means whatsoever, including memorization or electronic transmission.

Here's Michigan State University going one step further than the previous two and basically stating that studying for a test is copyright infringement.

The examination and the items contained therein are protected by copyright law. No part of this examination may be copied or reproduced in part or whole by any means whatsoever, including memorization, note-taking, or electronic transmission.

Who else thinks copyright law forbids the storage of infringing copies in the original cloud storage system, the human brain?

The list goes on from there, but as you can see, anyone offering some sort of expensive testing process/licensing claims you can't memorize their tests. How they aim to prevent this remains unanswered. Presumably, if someone duplicates the test from memory and offers these materials to others, they would pursue this as infringement.

It's clear they're trying to head off students selling questions and answers, something that could undermine the certification system. (Of course, these agencies could change their questions from year-to-year to head this off, but that would be far more difficult than just smacking around applicants with highly-dubious legal language.) But claiming that memorization is forbidden under copyright law is just idiotic. Unauthorized duplication and distribution might be, but creating cached copies in your mind while studying certainly isn't. It's an integral part of studying for tests. Throughout their educational existence, students use memorization to become familiar with the subject matter, and now, when they attempt to apply that in hopes of receiving certification, they're greeted with notices that say this practice is against the law.

Then there's the question of fair use, that awkward part of copyright protection that many rights holders tend to ignore. A few sample questions being reproduced would be an obvious case of fair use, but according to the (literally) "don't even think about it" warnings, this would also be an actionable offense.

A better solution would be to simply strike that asinine wording and deal with actual duplication of test materials that stretch beyond the limits of fair use. Those performing these acts of infringement are generally in it to profit from those who can't be bothered to learn the material. Chances are, most people wouldn't view the edited legal preamble as providing a but-I-can-store-it-in-my-brain loophole. The same goes for note-taking, which a few of these notices also single out. The problem isn't the person's notes, which are still personal. It's the duplication and distribution to the public. You can still keep people from taking notes during the actual tests, but you certainly can't keep them from remembering what they've seen.

from the kudos-and-boos dept

We already wrote about the launch of The Intercept, the first new publication from Pierre Omidyar's First Look Media, helmed by Glenn Greenwald, Laura Poitras and Jeremy Scahill, and about its first big article about the NSA's use of questionable metadata in telling the CIA where to drop bombs from drones. However, the other article that the publication launches with is also worth noting. It's by photographer Trevor Paglen, who rented a helicopter and took aerial photographs of the headquarters of the NSA, the National Reconnaissance Office (NRO) which builds spy satellites, and the National Geospatial-Intelligence Agency (NGA), which maps and analyzes imagery caught from those spy satellites. As Paglen notes:

My intention is to expand the visual vocabulary we use to “see” the U.S. intelligence community. Although the organizing logic of our nation’s surveillance apparatus is invisibility and secrecy, its operations occupy the physical world. Digital surveillance programs require concrete data centers; intelligence agencies are based in real buildings; surveillance systems ultimately consist of technologies, people, and the vast network of material resources that supports them. If we look in the right places at the right times, we can begin to glimpse America’s vast intelligence infrastructure.

But here's the part that caught my eye:

These new images of the NSA, NRO, and NGA are being placed in the public domain without restriction, to be used by anyone for any purpose whatsoever, with or without attribution. They can be found on Creative Time Reports, which commissioned this piece, as well as on Flickr, Wikimedia Commons and The Intercept.

Unfortunately, it doesn't appear that First Look/The Intercept is nearly as open about the text of its articles. They have a big copyright symbol on the bottom and no Creative Commons or other permissive license. In fact, their copyright statement appears to go to the other extreme, pretending that fair use and other user rights can be ignored -- and seems to go beyond what copyright allows, moving into the territory of copyfraud.

The Intercept is made available for your personal, noncommercial use only. All content and other material on this Service is the property of First Look Productions or its licensors and is protected by U.S. copyright laws, other copyright laws, and international conventions. Except as explicitly provided in these Terms of Use, you may not reproduce, distribute, display, perform, create derivative works from, or otherwise exploit any of the content or other material on this Service. You may display and occasionally print or store single copies of individual pages of the Service for your personal use, provided that you keep intact all credits and copyright and other proprietary notices, but you may not otherwise reproduce, store, or distribute copies of any content or other material found on this Service, in any form (including electronic form), or exploit any of the content you find here for any commercial purpose, without prior written permission from the copyright owner.

That statement above ignores even the possibility of fair use, which you can't do. I'm sure it's just boilerplate that First Look got from some lawyer, but for a publication with such lofty goals, and which used one of its first articles to release images into the public domain, you'd hope they wouldn't have started out with such a bogus copyright statement.

from the kudos dept

We've talked in the past about the unfortunate situation in which there is almost no real punishment for bogus DMCA notices. Section 512(f) of the DMCA is supposed to provide a way to get attorneys' fees, costs and damages for bogus DMCA takedowns. In practice, however, 512(f) has been almost totally neutered by the courts (not that it was ever strong to begin with). Lately, however, there have been a series of interesting 512(f) cases, in which people, including copyright expert Larry Lessig, have been dealing with clear attempts to censor protected speech.

Today, there's a very interesting new entrant, fighting two separate cases to go after the senders of totally bogus DMCA notices that were solely designed to censor. Automattic, the company that runs the super popular blog hosting platform WordPress.com, has filed two separate lawsuits against egregious cases of DMCA abuse. These are actually two cases that we've written about as examples of using the DMCA to try to censor criticism. The first involved an attempt to remove a series of articles on the excellent RetractionWatch site, run by Ivan Oransky and Adam Marcus, that were critical of researcher Anil Potti. As we noted at the time, this appeared to be an egregious use of the DMCA to censor content that someone didn't like. The second is the more recent example of the group Straight Pride UK giving an interview to student journalist Oliver Hotham, then deciding that they didn't like the fact that they sounded like idiots in the interview, and tried to use the DMCA to take down the article which included the quotes they had willingly given to Hotham.

Automattic has teamed up with Ivan and Adam in one case, and Oliver in the other, to seek damages under 512(f). While the initial cases themselves are interesting, it's doubly interesting to see Automattic itself get involved. Traditionally, the focus for 512(f) claims had been directly on the site owners, not the service providers. But Automattic's General Counsel Paul Siemniski explains that the company feels that it needs to step up and protect freedom of expression and fight back against DMCA abuse:

Until there are some teeth to the copyright laws, it’s up to us - websites and users, together - to stand up to DMCA fraud and protect freedom of expression. Through these suits, we’d like to remind our users that we’re doing all we can to combat DMCA abuse on WordPress.com….and most importantly, remind copyright abusers to think twice before submitting fraudulent takedown notices. We’ll be watching, and are ready to fight back.

We’ll also be actively involved, on behalf of our users, in trying to change the law - both through court cases and in Congress - to make sure that everyone has the right to share their voice on the Internet without threat of censorship.

Kudos to Automattic for this move. It's a step beyond what pretty much every other service provider who receives bogus DMCA notices has done. Automattic notes that a large part of the problem is that these situations aren't anomalies. They happen all the time -- and are frequently for improper reasons, such as for censorship and attempting to unmask anonymous bloggers.

We receive hundreds of DMCA notices and try our best to review, identify and push back on those we see as abusive. Our users have the right to challenge a DMCA complaint too, but doing so requires them to identify themselves and fill out a legally required form saying that they submit to being sued for copyright infringement in a place that may be far away. If they don’t, their content is taken down and could stay down forever. This tradeoff doesn’t work for the many anonymous bloggers that we host on WordPress.com, who speak out on sensitive issues like corporate or government corruption.

Given the history of 512(f) cases for "knowingly materially misrepresenting" a case of copyright infringement, these cases may be an unfortunately uphill battle. But, they could serve a few very important purposes. First, it will hopefully make people think twice about sending a bogus DMCA notice over a Wordpress.com site, knowing that they may face a lawsuit. Second, at the very least, getting more cases on the books showing how toothless the law currently is to fight DMCA abuse hopefully will lead to the law being fixed, such that abusing the DMCA to stifle speech will have real penalties under the law.

from the not-cool dept

We've talked in the past about how YouTube's ContentID system fails at fair use and the public domain -- whereby it is unable to distinguish public domain material. That has resulted in ridiculous situations, often where large companies with huge catalogs end up shutting down perfectly legal content. Sometimes it's crazy stuff like taking down a video because of birds chirping in the background, but other times it can result in public domain music being pulled down.

Musician Dave Colvin appears to be dealing with the latter, as he noted in a frustrated Facebook post about how the publishing arms of the major labels keep claiming copyright on public domain cover songs that he's been recording and posting to YouTube. The end result is that, even though all of these claims are bogus, YouTube is threatening to take away his ability to monetize his account, and have already disabled it on a public domain song.

I am fed up with YouTube. Several times I have provided evidence that my video "O Little Town of Bethlehem" is a Public Domain song and each time I get an email saying the song is owned by either Warner Chappell or UMPG or Sony. Now they have disabled my being able to earn any money for the number of times the video is viewed. We are only talking about pennies but no one "owns" a Public Domain song.

They now have threatened to totally disable my account from monetizing any of my videos because of multiple "false" claims of ownership. Since there is no way to speak to a human being directly, there will never be a way to convince them of the error of their ways....Fed up!

(And just to cut this argument off before it even begins: you can absolutely make money from public domain material, you just can't stop others from doing the same thing). Again, this isn't the first time we've seen this kind of thing, and it's a situation that YouTube really needs to figure out a solution to.

...your product was removed due to an infringement claim by Warner Bros. Studios. While the artwork as you claim is original, the characters from the Wizard of Oz are currently property of Warner Bros. As a guideline, designs from the Wizard of Oz that are currently prohibited for sale on Zazzle’s Marketplace are:

All inspired artwork and character renderings from the Wizard of Oz

Quotes from the Wizard of Oz Franchise

All tags and descriptions that reference the Wizard of Oz

- Zazzle

There are a few problems with this. First of all, characters from the Wizard of Oz are not, in fact, "property of Warner Bros." The original book, written by L. Frank Baum, was published in 1900 and is in the public domain. The popular movie version, in which Warner Bros. holds the copyright, came out in 1939. This does lead to some interesting copyright questions, and a few lawsuits. For example, last year, we wrote about a lawsuit involving t-shirts designed with public domain Wizard of Oz images. And then there's a brewing fight over whether or not Disney can make a film based on the public domain parts of the Baum books if it makes no reference to the 1939 movie.

Basically, what the law has said is that if you're making references to the specific characters or character traits that were portrayed in the movie, but which are not from the books, then its under WB's copyright. So, if you were to display pictures of the actual actors or specific expressions or outfits that are from the movie, but not the books, then there's an issue.

From Adkins' post, however, it appears these were the images on the t-shirts that were removed from Zazzle:

It is difficult to see how either of these come anywhere close to infringing on WB's copyright. The first one merely displays a witch's pointy hat. While it seems that the origin of the pointy, wide-brimmed witch's hat has been lost to history, the various reports online suggest it long pre-dates 1939 and the movie. In fact, it appears that images in the original books show the witch in a pointed, wide-brimmed hat. So the hat is not copyright to Warner Bros.

Then there's the flying monkey. Problem being... the flying monkeys were in Baum's books, and Adkins' drawing is quite different from the version in the movie.

The concept of water melting the witch? Also in Baum's books, and as Adkins details in his blog post, it way predates the Oz books anyway.

Basically, everything in Adkins' images appear to reference the original Baum books and not the movie. Assuming Warner Bros. did make a copyright claim, as Zazzle's email stated, then it is engaging in copyfraud here and asserting copyright against images it has no rights over.

That said, Adkins also exaggerates his own rights in his response to Zazzle, which he posted. After explaining to Zazzle why his works did not infringe on WB's copyright, he unfortunately goes on to say:

As such, I respectfully request that my material and corresponding artwork be returned to circulation for purchase immediately.

Failure to do so would be an infringement on my copyright of my created artwork which, as verified by the testimony above, does NOT infringe upon Warner Bros. Entertainment’s copyright on the 1939 film or the specific celluloid representations of the characters made in said film. If my copyright continues to be infringed upon I will seek legal action against both Zazzle and Warner Bros. Entertainment.

Uh... no. Zazzle choosing not to display your work is, in no way, copyright infringement. As a private company, Zazzle has every right to refuse to display any particular work, even if its reasons are dumb. The public (and people like Adkins) are free to mock them, but there is no copyright issue there, and especially not infringement by Zazzle. The service certainly does not have the greatest reputation because of its quick trigger finger in pulling down perfectly legal content, but that doesn't mean it's illegal. Claiming that not displaying someone's work is infringement is just ridiculous, and takes away from Adkins' otherwise strong arguments.

Either way, the original point stands: Adkins' works don't appear to be infringing WB's copyrights. If WB did make the claim, it appears that WB went way too far. Adkins should have just filed a standard counternotice to Zazzle, and one would hope Zazzle does the right thing and puts the works back up.

from the about-freaking-time dept

A few months ago, we noted how in certain cases Flickr would completely delete images (and comments) when it received a DMCA takedown notice. That meant that even if the takedown was bogus -- as so many are -- after you contested the takedown and could put back the image, you probably lost everything else on that page. That's kind of ridiculous. As Jake Rome alerts us, Yahoo (owner of Flickr) finally realized that perhaps it should change its policy and, instead, put the targeted image in limbo to allow the uploader to contest the takedown:

We want to let you know that we have implemented a global change in the standard takedown process that will benefit the whole Flickr community going forward.

When a photo is removed from the site based on a notice of alleged copyright infringement, we will temporarily show a placeholder and the member will have an opportunity to respond before the image is made unavailable.

If the alleged copyright infringement is found to be fraudulent, the image in question will be restored, and the photopage will look like before.

It's really quite amazing that it took this long for Flickr to realize this was needed.

from the what-a-neat-little-trick dept

This is easily one of the best responses to copyfraud I've ever read. Sure, Jay Leno is a pretty easy target for a roast, but musician Brian Kamerer does a brilliant job of taking him to task over a bogus YouTube takedown. I strongly suggest reading the whole thing, but here's the short version of what happened.

A few years ago, Brian helped a friend, who was running for mayor, create an intentionally silly campaign jingle and commercial, which they uploaded to YouTube. Two years later, they heard from another friend that the video had appeared on the Jay Leno Show as part of a segment about local campaign commercials. They just got a kick out of it, and moved on—until now, another three years later. Brian discovered that the YouTube video had been taken down on a copyright claim... by NBC (most likely as the result of a ContentID match as NBC uploaded old episodes into the system). So Leno mines the internet for material to air on his show—without permission or even the courtesy of letting them know—and then, years later, the network claims ownership of that material and accuses the actual creators and copyright holders of infringement. Brian is unimpressed, to say the least—and even supplies a script for how he imagines things went down:

JAY LENO

Hey remember those loser kids, we played their bit once, remember those guys? Let’s get em.

WRITER

What? Who? Why?

JAY LENO

Those guys, we took their video about three years ago and played it, I loved that song, remember?

WRITER

Oh yeah, sure, I remember those guys. So, what is it you want to do to them?

JAY LENO

I want to have the boys at NBC say that we own the video, so that if they try to watch their video on YouTube, they won’t be able to, and it will look like they stole the video, like Carlos Mencia!

WRITER

Or we could just leave those two nice boys alone. After all, you loved that song, remember?

JAY LENO

You’re fired! Secretary! Get me someone who has the balls to frame these two unknown assholes, so that eventually their work will be blocked on YouTube! And I need fifty more classic cars!

He's kidding of course—he knows that's not how it really happened. The real problem is that the system is broken: the law favors the accuser and permits this kind of copyfraud, giving NBC absolutely no incentive to narrowly target its takedown efforts. But Brian, quite reasonably, points out that he's not interested in excuses—everything that happened revolves around the public face of Jay Leno, and he sees no reason that Leno shouldn't bear the blame.

I know you’re reading this going, “Brian, you don’t understand! It’s not me, it’s just some NBC internet robot that scans YouTube videos and then compares the videos to the vast NBC library and just blocks the YouTube videos that match up, because the robot assumes the video has been stolen. Besides, you don’t own anything on YouTube! Don’t be mad at me, funny man Jay Leno! I liked your video! It’s the robot’s fault. The robot fucked up.”

Don’t hide behind NBC on this one, dude. And don’t blame YouTube. And forget about the robots. I’m not talking to the robot now. I’m talking to you, Jay Leno. Where does the buck stop on The Jay Leno Show, if not with Jay Leno himself? The buck stops with you Jay.

As more people fall victim to copyfraud—including this process whereby a TV network launders your copyrights into their own—and tell the story publicly (and entertainingly) as Brian has done, the aggressive entertainment companies are going to have a harder time recruiting stars as mouthpieces for the anti-piracy cause. Increasingly, they are going to see their own artists rebelling against their bogus takedowns and over-enforcement, as some already are. Combine that kind of pressure with transparency efforts like Google's newly available takedown data, and eventually something's got to give—starting with any remaining shred of public respect for copyright law.

from the join-us dept

As we mentioned earlier this week, we're experimenting with doing a live discussion for the Techdirt book club. For April, the book was Copyfraud by Jason Mazzone who will be joining us today to talk about it at noon PT (3pm ET).

from the fair-use-matters dept

We're running a bit late with book club related stuff due to my ridiculous travel schedule, but we're going to get back on track. First up, rather than just having Jason Mazzone, the author of April's book club book Copyfraud, do a blog post, we're going to host a live chat here on Techdirt, and that will take place this Friday at noon PT/3pm ET. Just show up on the site then and assuming no technical difficulties, we'll do a Q&A session/chat using the popular CoverItLive platform. If you haven't yet read Copyfraud, please check out the chapter we posted (part one and part two).

As for the book for May, it is the excellent Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi, two of the most recognized scholars on fair use issue. It's really a great book if you're trying to understand fair use and why it's important. As always, the book is available in lots of places -- with Amazon being a popular one. While I recognize the ebook pricing is still somewhat higher than some folks here think is reasonable, it is at least lower than the last few books. Also, Patricia has granted us permission to re-publish a fair bit of content, which we'll be doing over the coming weeks. Today, we'll kick it off with part of chapter one on The Culture Of Fear And Doubt, and How To Leave It. So with that, we'll jump right into the excerpt from that chapter:

Gordon Quinn, for forty years a professional filmmaker including as executive producer on the
award-winning film Hoop Dreams, was working on a public television program in 2001. New Americans
is about the lives of new immigrants to the U.S. In one scene, Israel Nwidor, a Nigerian immigrant
trained as a chemical engineer and now working as a cab driver, is listening to a George Strait song
in his car when a white guy on a motorcycle pulls alongside and gives him the evil eye. It's one of
those little moments that reveal a lot.

Twenty years before, Gordon wouldn't have given the song playing on the speakers another
thought. But over the last two decades, he had become hyper-conscious of the copyrighted material
in documentaries. Broadcasters and insurers had become hyper-vigilant, demanding assurances
that he had licensed every stray bit of copyrighted material. Did the reunited family sing “Happy
birthday”? License it. Were the middle-school girls on a sleepover listening to pop songs? License
them. Did the little autistic boy love “Puff the Magic Dragon” as a comfort song? License it. And
what about those posters on the walls? The books on the shelf?

As a result, Gordon didn't doubt that he would need to license the George Strait song that Israel
was nodding along to. Only he knew from experience that he probably wouldn't get an answer to an
email sent to the music company. The amount of money involved would be so trivial that the music
company's licensing executives wouldn't even respond.

So Gordon cut out the scene. Nobody watching it even knew they were missing anything. It was one
of a thousand little cuts that nobody knew they were missing, each one of them a silent erasure of a
piece of reality.

*

Cyndy Scheibe, a psychology professor at Ithaca College and director of Project Look Sharp, a
media literacy initiative, uses comic strips from newspapers and other pieces of popular culture—
clips from documentaries, popular films, and print advertisements--in her classes to teach about
point of view and representation. Her team at Project Look Sharp has created online curriculum
materials about the media’s representation of the Middle East, featuring among other things a clip
from the Disney film Aladdin.

Could Cyndy's teaching materials safely be shared with other teachers? Did she dare to put it on
an open website? The Ithaca College legal experts and administrators were divided, and finally
demanded that both Cyndy and her colleague Chris Sperry personally pledge their willingness to go
to court to defend themselves should their use of unlicensed copyrighted material be litigated.
Cyndy and Chris gambled, and let the site go up. They erred on the side of caution where they
could. For one exercise that involved comparisons of covers of the magazine Newsweek, they tried
to license the covers from the news corporation. But the company would not license them for an
appropriate fee, and furthermore, the company told them, Cyndy and Chris would also have had
to negotiate with the subjects of the covers. The company spokesperson was actually talking about
two kinds of rights: the company’s copyright, and the celebrities’ right of publicity. Cyndy and Chris
believed, correctly, that they did not need to get permission from the likes of Osama bin Laden,
since they had a First Amendment right that overrode any publicity claims he could make. As for the
copyright claims, they decided to use the magazine covers under fair use; they and their university
counsel believed there was no question.

Even when they were sure they were within the law, though, Cyndy and Chris were given pause by
what they’d heard in the rumor mill. That little clip from Aladdin—did that put them in jeopardy
from the Disney Corporation? They’d heard that Disney was wildly litigious. They finally added that
clip to the website, and held their breaths.

They were relieved to see Project Look Sharp be widely used, and even more relieved as the threat
of litigation failed to emerge. They had pledged if necessary to loot their 401(k)’s for legal funds to
defend their rights to reference their own culture, and--for now--they thought they didn't have to.

from the ridiculous dept

Brian LaSorsa points us to the unfortunate case of Steve Kardynal, a pretty popular maker of funny online videos. There are all sorts of creative people who have been enabled to create and put their works out to the world thanks to things like YouTube. Kardynal makes funny sketches, with some of the most popular being his "Songs in Real Life" videos, in which he creates scenes where every so often the dialogue actually is a short clip -- between 3 and 10 seconds -- from a popular song. Unfortunately, as he notes in the video explaining what happened, the second one of these videos received a takedown from Sony (a year after it was posted):

Realizing that getting three strikes on YouTube means he would lose his account -- which already has about 100 million views -- he's pretty freaked out. In response, he's set his other "Songs in Real Life" videos to private to hopefully avoid getting any other strikes while he tries to figure out what to do.

While his videos are no longer available, with a little searching you can find them elsewhere. I don't know how long this will remain available, but here's someone who put all three of the "Songs in Real Life" videos into a single video. It's difficult to see how this isn't fair use, and I'd argue that this is a clear case of Sony engaging in copyfraud.

As Steve notes, all of the video clips are between 3 and 10 seconds. No one is going to reasonably claim that this takes away from the market for that song. Furthermore, as he also points out, he listed all the songs that were used in the description of his video and made it easy for people to go buy the songs. In other words, it's difficult to see how these videos didn't actually help the market for these songs, rather than hurt it. The Lenz v. Universal case showed that copyright holders need to take fair use into account when they issue DMCA takedowns, and it certainly doesn't look like Sony did so in this case.

But, really, what's even more interesting about this story is just how much it has impacted Steve. He talks about how he's afraid to lose all that he's worked on and how it's like losing a family member. This is the exact opposite of what copyright law is supposed to do. Here it's being used to stifle and shut down creativity. And while some may claim that what Steve feels is no different than what an artist whose work is infringed on experiences, it seems quite different, actually. With an infringement, an artist hasn't lost anything. It's just that their own wishes for how the music is used or paid for gets denied. In this case, the content is actively being shut down. There's a real loss. That's unfortunate.